Rogele, Inc. (Employer) petitions for review of the order of the Workers' Compensation Appeal Board (Board) which affirmed the Workers' Compensation Judge's (WCJ) decision which ordered Employer to pay partial disability benefits from September 30, 2005, until the date of Todd Mattson's (Claimant) conviction, pay Claimant's attorney fees of $3,200.00, and pay a fifty percent penalty.

Claimant worked as a laborer for Employer. On July 31, 2003, Claimant sustained an avulsion fracture of the triquetrum dorsally of his right wrist while operating a drill. Claimant received partial disability benefits from August 2 to August 28, 2003, when he performed light duty work. On October 31, 2003, Claimant underwent arthroscopic surgery for debridement of the scapholunate ligament, debridement of the triangular fibrocartilage complex, complete synovectomy of the right wrist, neurectomy of the posterior interosseous nerve and capsulorrhaphy. Claimant returned to light duty work with Employer in January 2004, and received partial disability benefits until he was laid off on June 15, 2004. Claimant received total disability benefits until October 2004, when he began substitute teaching. Employer petitioned to modify/suspend Claimant's benefits. The WCJ denied the petition on December 27, 2005.

On October 20, 2005, and January 10, 2006, Employer petitioned to suspend benefits on the basis that Claimant voluntarily withdrew from the workforce after he solicited the murder of his wife. Claimant was incarcerated without bail in the Cumberland County Jail on October 13, 2005. Employer stopped paying benefits to Claimant after September 30, 2005. In a letter dated July 11, 2006, Employer enclosed an order from the Court of Common Pleas of Cumberland County whereby Claimant pled guilty to criminal solicitation. In the letter Employer requested that the WCJ keep the record open so that Employer could submit the sentencing order which was due on August 1, 2006. On August 15, 2006, Claimant was sentenced to a term of four to eight years imprisonment.

On August 2, 2006, the WCJ ordered Employer to pay Claimant partial disability benefits from September 30, 2005, until Claimant's conviction, ordered Employer to pay Claimant's attorney fees of $3,200.00, and ordered Employer to pay a fifty percent penalty. The WCJ made the following findings of fact:

3.... Section 306(a.1) is quite clear that payment of disability compensation is not required when an employee is incarcerated after a conviction. The Legislature could very easily have disqualified the payment of compensation whenever an employee was incarcerated, but the Legislature chose not to do so.

Thus, this provision does not authorize the workers' compensation carrier to have legally ceased paying Mr. Mattson his benefits because he was incarcerated pending a trial.....

5. Not barring the receipt of compensation while incarcerated pending trail [sic] is consistent with the humanitarian purposes of the Workers' Compensation Act. That is to say, given the fundamental axiom of a presumption of innocence until proven guilty, an individual on workers' compensation would often lack resources to be able to post bond. Denying him comp while incarcerated pending trial would be like kicking somebody when he was down, depriving him of minimal livelihood at the same time his personal freedom is threatened and the need for resources to pay for legal counsel to preserve that freedom is necessary.....

8. The carrier has admitted that it has not paid Mr. Mattson anything since September 30, 2005. The instant case does not fall into any of the categories of automatic cessation of benefits as is set forth in Section 413 (b). Therefore, the carrier's unilateral cessation of payments is subject to penalty. And because the carrier's action is intentional flagrantly illegal and cruel, a 50% penalty should be awarded.....

10. Furthermore, it must be noted, that since Claimant's incarceration, the carrier has not gone through a job referral/job availability exercise (having already gone through that exercise and failed. See This Judge's decision dated 1/4/06). Thus, there is not reasonable basis, under the Workers' Compensation Act, for the carrier to have filed its petition, much less unilaterally stop payments, so that quantum meruit counsel fees in the amount of $3,200.00 as per the attached itemization should be awarded.

WCJ's Decision, August 2, 2006, Paragraphs 3, 5, 8, ...

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